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Facebook : employee comments justify summary dismissal

Facebook : employee comments justify summary dismissal

The Labour Court of Leuven has recently held that the dismissal of a 50 year old Business Development Manager on the basis of disparaging remarks about his employer that he published on his Facebook page was justified. The published comments were highly critical of the employer company’s financial results and commercial policy and were spread over a period of 10 months.

The employee attempted to argue that the comments that appeared on his personal Facebook page were covered by privacy protection and therefore could not be lawfully used as evidence. The Court rejected this argument and concluded that, in the case at hand, where the page was accessible not only by the employee’s “friends” but also by “friends of his friends” and where any Facebook user could read comments on his wall, there was no violation of the employee’s privacy rights.

This decision, which is a first for Belgium, follows on from similar decisions in France and the UK which reached similar conclusions. In the French case the comments were published by an employee on the page of another employee, which was then forwarded to the employer by other employees having access to the same page. The French court reached the same conclusion as to lack of privacy protection given that the Facebook page was open to “friends of friends” as well as “friends”.

Apart from the question of privacy and evidence, these cases also raise the question of the degree to which an employee is entitled to criticize his/her employer. In this respect the Leuven Court appears to have been influenced by the fact that the employee was a management level employee and that the comments were deemed to be contrary to the company’s rules on use of e-mail and internet.

In conclusion, each case is likely to be different depending on the facts and it is dangerous to draw any generally applicable rule or conclusion.

Olivier Langlet & Sophie Poncin

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